mental illness and child custody by the phoenix divorce attorneys at acevedo henry

Introduction to Mental Health Conditions and Child Custody – Phoenix Divorce Attorneys

With twenty to twenty-five percent of Americans self-reporting that they suffer from some mental health condition, it is quite common for one parent or the other (or perhaps both) in a child custody or divorce proceeding to have a mental impairment, disability, and/or illness. While a mental impairment, disability, or condition does not necessarily disqualify a person from being awarded custody – even primary custody – of his or her children, it may play a role in the orders the court decides to enter.

The ‘Best Interest’ Standard and Mental Health Conditions

mental illness and child custody by the phoenix divorce attorneys at acevedo henryWhen making a decision regarding a child – which parent should receive primary custody, how parenting duties should be split, etc. – a court is required to enter orders it finds to be in the best interest of the child. There are many factors that a court may consider in determining what is in a child’s best interest, but these factors are not exclusive – the court may consider other factors it determines to be relevant. These “other factors” may include a mental condition with which one parent or the other is diagnosed. What is most important for a court in such a situation would be how the mental condition impacts the individual’s ability to make well-informed parenting decisions and effectively parent the child when the child is in the custody of the individual. For example, a court may tend to hesitate in awarding custody or extended visitation to an individual with a mental condition if:

  • The medication(s) the parent is taking make the individual exceedingly drowsy or cloud the individual’s judgment;
  • The individual has just started taking new medications, and it is unknown how the medications might affect the parent;
  • The individual decompensates rapidly when he or she is not taking his or her medication as prescribed and the individual has a history of not taking his or her medication(s);
  • The individual’s mental condition makes him or her violent or otherwise a risk to him- or herself and/or others, and there are not appropriate safeguards in place to protect the child(ren).

Mental Health Records May Be Discoverable

Although physical and mental health records are usually private records that have limited relevance to a lawsuit or proceeding, these records are especially relevant in child custody proceedings. Individuals who have a mental condition(s) should expect (at the very least) that their mental health records will be subpoenaed and that they will need to answer questions regarding their mental condition and course of treatment. If there is reason to believe either parent might be suffering from an undiagnosed mental condition, the individual may be asked to submit to an evaluation by the court.

For more information call a family law attorney in Phoenix regarding your child custody case.

If a person seeking custody or visitation does have a history of mental illness, it may be advisable for that person to bring this matter to the attention of the court themselves and be prepared with evidence that shows the impact of the condition. For example, a person’s psychologist or psychiatrist can be called as a witness and speak as to the individual’s diagnosis or diagnoses, the signs and symptoms the individual has historically exhibited, how the condition(s) are being managed, and/or the individual’s compliance with treatment directives.

Many courts will presume that some visitation with a parent who suffers from a mental condition or illness is in the best interest of the child. If the parent is managing his or her condition well and has support mechanisms in place that can assist in the event the parent decompensates or experiences difficulty, courts should have very few issues in awarding primary custody and/or liberal visitation with the parent.  Contact an attorney at Acevedo Henry Law Firm today.


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